Trafficking in Persons

Smuggling of Migrants

https://sherloc.unodc.org/cld/v3/sherloc/

UN Convention against Transnational Organized Crime

Article 2 – Use of Terms

(a) “Organized criminal group” shall mean a structured group of three or more persons, existing for a
period of time and acting in concert with the aim of committing one or more serious crimes or offences
established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or
other material benefit;

Article 34 - Implementation of the Convention:

1. Each State Party shall take the necessary measures, including legislative and administrative
measures, in accordance with fundamental principles of its domestic law, to ensure the implementation
of its obligations under this Convention.

2. The offences established in accordance with articles 5, 6, 8 and 23 of this Convention shall be
established in the domestic law of each State Party independently of the transnational nature or the
involvement of an organized criminal group as described in article 3, paragraph 1, of this Convention,
except to the extent that article 5 of this Convention would require the involvement of an organized
criminal group.

3. Each State Party may adopt more strict or severe measures than those provided for by this Convention
for preventing and combating transnational organized crime.

Protocol against the Smuggling of Migrants by Land, Sea and Air

Article 3 – Use of Terms

(a) “Smuggling of migrants” shall mean the procurement, in order to obtain, directly or indirectly, a financial
or other material benefit, of the illegal entry of a person into a State Party of which the person is not a
national or a permanent resident;

(b) “Illegal entry” shall mean crossing borders without complying with the necessary requirements for legal
entry into the receiving State;

(c) “Fraudulent travel or identity document” shall mean any travel or identity document:

(i) That has been falsely made or altered in some material way by anyone other than a person or
agency lawfully authorized to make or issue the travel or identity document on behalf of a
State; or
(ii) That has been improperly issued or obtained through mis- representation, corruption or duress
or in any other unlawful manner; or
(iii) That is being used by a person other than the rightful holder;

(d) “Vessel” shall mean any type of water craft, including non- displacement craft and seaplanes, used or
capable of being used as a means of transportation on water, except a warship, naval auxiliary or other
vessel owned or operated by a Government and used, for the time being, only on government non-
commercial service.

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Protocol to Prevent, Suppress and Punish the Trafficking in Persons Especially Women and
Children
Article 3 – Use of Terms

(a) "Trafficking in persons" shall mean the recruitment, transportation, transfer, harbouring or receipt of
persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of
deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of
payments or benefits to achieve the consent of a person having control over another person, for the
purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of
others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to
slavery, servitude or the removal of organs;

(b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph
(a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been
used;

(c) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation
shall be considered "trafficking in persons" even if this does not involve any of the means set forth in
subparagraph (a) of this article;

(d) "Child" shall mean any person under eighteen years of age

Checklist: Elements of Trafficking in Persons

1. Acts (what is done)

i. Recruitment
ii. Transportation
iii. Transfer
iv. Harbouring
v. Receipt of persons

2. Means (how it is done)

i. Use of force
ii. Threat of the use of force
iii. Other forms of coercion
iv. Abduction
v. Fraud
vi. Deception
vii. Abuse of power or of a position of vulnerability
viii. Giving or receiving payments or benefits to achieve the consent of a person having control
over another.

3. Purpose (why it is done)

i. Prostitution
ii. Other forms of sexual exploitation
iii. Forced labour or services
iv. Slavery
v. Practices similar to slavery
vi. Servitude
vii. Removal of organs

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Smuggling of Migrants v. Trafficking of Persons

Smuggling of Migrants (SOM) Trafficking in Persons (TIP)

Geography Always involves the crossing of may occur entirely within the borders
international borders. of one country or transnationally.

Purpose Migrant smugglers act to obtain a 'financial The purpose of TIP is the exploitation
or material benefit'. of the victim.

Consent Not an element of the definition of Irrelevant if means have been used
smuggling of migrants. (and always if the victim is a child as
means need not be established).

Exploitation Not an element of SOM. The purpose element of TIP.

Profit Profit ('financial or other material benefit') is In practice, traffickers likely aim to
the purpose element of smuggling of generate profit through exploitation of
migrants. the victim.

Victimization Smuggled migrants are not "victims" under Persons who are trafficked are seen
the Protocol against the SOM. as victims of the crime of TIP.

Perpetrator Smugglers may be opportunistic Traffickers may be organized

individuals, organized criminals, the criminals, the victim's own family or
migrant's own family or friends or friends or others.
others, but only where they act for financial
or other material benefit.

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Legal Framework Regulating Rescue at Sea

The 1982 UN Convention on the Law of the Sea (UNCLOS)

Article 98: Duty to render assistance

1. Every State shall require the master of a ship flying its flag, in so far as he can do so without serious
danger to the ship, the crew or the passengers:
a. To render assistance to any person found at sea in danger of being lost.
b. To proceed with all possible speed to the rescue of persons in distress, if informed of their need of
assistance, in so far as such action may reasonably be expected of him.
c. After a collision, to render assistance to the other ship, its crew and its passengers and, where
possible, to inform the other ship of the name of his own ship, its port of registry and the nearest
port at which it will call.

2. Every coastal State shall promote the establishment, operation and maintenance of an adequate and
effective search and rescue service regarding safety on and over the sea and, where circumstances so
require, by way of mutual regional arrangements co-operate with neighbouring States for this purpose.

The 1974 International Convention for the Safety of Life at Sea (SOLAS)
Regulation 7: Search and rescue services

1. Each Contracting Government undertakes to ensure that necessary arrangements are made for distress
communication and co-ordination in their area of responsibility and for the rescue of persons in distress at
sea around its coasts. These arrangements shall include the establishment, operation and maintenance of
such search and rescue facilities as are deemed practicable and necessary, having regard to the density of
the seagoing traffic and the navigational dangers, and shall, so far as possible, provide adequate means of
locating and rescuing such persons.

2. Each Contracting Government undertakes to make available information to the Organization concerning its
existing search and rescue facilities and the plans for changes therein, if any.

3. Passenger ships to which chapter I applies shall have on board a plan for co-operation with appropriate
search and rescue services in the event of an emergency. The plan shall be developed in co-operation
between the ship, the company, as defined in regulation IX/1, and the search and rescue services. The plan
shall include provisions for periodic exercises to be undertaken to test its effectiveness. The plan shall be
developed based on the guidelines developed by the Organization.

The 1979 International Convention on Maritime Search and Rescue (SAR)

Chapter 2.1.10: Parties shall ensure that assistance be provided to any person in distress at sea. They shall do
so regardless of the nationality or status of such a person or the circumstances in which that person is found.

Chapter 2.2 Co-ordination of search and rescue facilities

2.2.1 Parties shall make provision for the co-ordination of the facilities required to provide search and rescue
services round their coasts.
2.2.2 Parties shall establish a national machinery for the overall co-ordination of search and rescue services.

Chapter 2.3 Establishment of rescue co-ordination centres and rescue sub-centres

2.3.1 To meet the requirements of paragraphs 2.2.1 and 2.2.2 Parties shall establish rescue co-ordination
centres for their search and rescue services and such rescue sub centres as they consider appropriate.
2.3.2 The competent authorities of each Party shall determine the area for which a rescue sub-centre is
responsible.
2.3.3 Each rescue co-ordination centre and rescue sub-centre established in accordance with paragraph 2.3.1
shall have adequate means for the receipt of distress communications via a coast radio station or otherwise.
Every such centre and sub-centre shall also have adequate means for communication with its rescue units and
with rescue co-ordination centres or rescue sub-centres, as appropriate, in adjacent areas.